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BERKOWITZ v. WILBAR (01/05/65)

decided: January 5, 1965.

BERKOWITZ, APPELLANT,
v.
WILBAR



Appeal from decree of Court of Common Pleas of Dauphin County, No. 252 Commonwealth Docket, 1964, No. 2645 Equity Docket, in case of Stanton A. Berkowitz v. C. L. Wilbar, Jr., M.D., Secretary of Health.

COUNSEL

Edward N. Barol, for appellant.

William M. Gross, Assistant Attorney General, with him Walter E. Alessandroni, Attorney General, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Cohen. Mr. Justice Eagen joins in this concurring opinion.

Author: Roberts

[ 416 Pa. Page 370]

On May 12, 1964, Stanton A. Berkowitz filed a complaint in equity against the Secretary of Health of the Commonwealth of Pennsylvania seeking a preliminary injunction to restrain the Secretary from dismissing plaintiff from his position as "Institutional Business Manager II" at the Henry R. Landis State Hospital. After consideration of the allegations of the complaint and oral argument, the Commonwealth Court denied the preliminary injunction and plaintiff appeals.

Pursuant to ยง 212 of the State Civil Service Act of 1941, as amended,*fn1 the State Department of Health arranged with the State Civil Service Commission for it to administer the Department of Health's civil service

[ 416 Pa. Page 371]

    system. The position of Institutional Business Manager II was established as one within the classified civil service. On January 9, 1958, appellant was awarded permanent merit system status in that position.

The Civil Service Act was amended in 1963,*fn2 and by letter of November 1, 1963, appellant received notice from the Director of Personnel of the Department of Health that his position had been placed in the "unclassified service" as of August 27, 1963. The given basis for the change was Section 1(c) (1)*fn3 of the amendatory act which provides: "(c) 'Unclassified service' includes all positions now existing or hereafter created in departments and agencies included in clause (d) (Classifed service) of this section, which are held by: (1) Heads of departments of the Commonwealth and the deputy heads thereof and bureau and division chiefs and all other supervisory personnel whose duties include participation in policy decisions."

Upon receipt of this notice, appellant appealed the ruling to the Civil Service Commission and requested a hearing. On November 27, the Commission replied that the determination as to what positions fell into the unclassified service rested with the Governor, the Budget Secretary and the Executive Board of the Commonwealth. The Commission denied it had any jurisdiction and refused a hearing.

On February 5, 1964, appellant received official written notice from the Commission that his position was placed in the unclassified service, effective August 27, 1963. Then, by letter of April 24, 1964, ...


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